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Louis Henkin in JILP

In mem­o­ry of Louis Henkin, who died last month in New York, I recent­ly took to the archives, to see whether any of his work had found its way into the NYU Jour­nal of Inter­na­tion­al Law and Pol­i­tics.  While Henkin’s byline nev­er appeared in any of JILP’s forty-two vol­umes, his work nev­er­the­less left a mark on our pages.

In the sev­enth vol­ume of JILP, a review of Henkin’s For­eign Affairs and the Con­sti­tu­tion rec­og­nized the supreme impor­tance of this work to the field of U.S. for­eign rela­tions law.  (7 N.Y.U. J. Int’l L. & Pol. 203.)  Henkin, Stan­ley Fut­ter­man wrote, spoke with “the nat­ur­al mod­esty and courage of the true teacher.”  But our review­er soon takes  a more crit­i­cal stance in light of Henkin’s dis­cus­sion of Viet­nam.In the review, one can feel the renewed urgency of this field of study, in light of the ongo­ing trau­ma of the Viet­nam War.  The review some­times laments Henkin’s rel­a­tive­ly neu­tral tone, wish­ing that Henkin would do more than assess the bare legal­i­ty of cer­tain asser­tions of pres­i­den­tial pow­er, and that he would also dis­cuss the “con­sti­tu­tion­al pro­pri­ety” of leg­isla­tive action.  Con­sid­er this para­graph:

Pres­i­dent John­son did have the Tonkin Gulf Res­o­lu­tion, of course, as a prop for his lat­er deci­sion [to com­mit troops].  And its lan­guage is borad enough to encom­pass all that was lat­er done.  But is it imma­te­r­i­al that the Res­o­lu­tion was passed more than half a year in advance of the send­ing of large num­bers of com­bat forces into Viet­nam, in the very dif­fer­ent con­text of what was under­stood to be … naval attacks on Amer­i­can war­ships on the high seas? So long as the ques­tion is only one of tech­ni­cal legal autho­riza­tion, the answer is prob­a­bly yes.   If the ques­tion is whether the Pres­i­dent act­ed prop­er­ly in not return­ing to Con­gress for a delib­er­ate deci­sion … the answer is no.  Henkin’s falure to pose the issue of con­sti­tu­tion­al pro­pri­ety in regard to Viet­nam is no ser­vice to future Chief Exec­u­tives.  The con­se­quences of con­sti­tu­tion­al impro­pri­eties may not show up in the courts; but unless the nation is very lucky, as it obvi­ous­ly was not in Viet­nam, they will leave an unmis­tak­ble imprint of recrim­i­na­tion and mis­trust in the body politic.

For­eign Affairs would receive a thor­ough update in 1997.  Also, see this inter­view with Sarah Cleve­land on the con­tin­ued lega­cy of Henkin’s in the “age of ter­ror.”

Henkin has also been cit­ed in our jour­nal in at least 110 arti­cles and notes.  This num­ber will increase with the pub­li­ca­tion of our Fall 2010 issue, as two pieces (includ­ing my own) make ref­er­ence to his high­ly influ­en­tial work on human rights and state sov­er­eign­ty.

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